Posted
by
Soulskill
on Friday June 07, 2013 @11:20AM
from the if-you-have-nothing-to-hide dept.

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him.
"A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference."
Read on for the rest of Bennett's thoughts.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees
in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not
just as it applies to computer passwords, but in general.
(Hereinafter I'm just going to refer to the Fifth Amendment
right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment,
such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since
they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely
defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in
a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you
hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post
a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you.
(The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.)
But the "right against
self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank
question asking whether you committed a crime, even if the question elicits no other information that ought to remain
private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood
of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason
that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading
these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading
list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is,
everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have
to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police
have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife,
but there's always the risk that a search of an innocent person's house would
penalize them by exposing their private information and belongings.
By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is
relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter
that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less
invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing
to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder
is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell
you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you
committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all,
unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses
with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted
of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have
been grossly abused, the solution is to limit those powers, not abolish them entirely.
(That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering
judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".)
Compared to the possibility of getting
arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after
the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me
with the same questions, or if courts refuse to believe me and try to railroad
me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of
your guilt.
This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them
stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were
(giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question
of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered
proof of guilt,
but the likelihood of guilt is a probability question,
which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself.
Is the second roommate's silence relevant to your estimation of their guilt? Of course it is.
If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence
can be considered relevant
in
a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense.
For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping,
but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state,
on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example,
if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial.
However, in that case the bar on improperly obtained
evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering.
There's no obvious similar reason why a person's refusal to answer a question
shouldn't be considered relevant to the likelihood of their
guilt.

For these two reasons,
I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive
difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical
world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent
defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment
rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of
a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment,
that didn't hold up under scrutiny.
For the government to convict you of lying about not committing the murder, they would also have to convict you of
the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they
also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able
to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the
government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments)
is a precisely defined scenario that meets all of the following criteria:

The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical
world where the Fifth Amendment does not exist, even while holding all other assumptions constant.
(So the "corrupt overzealous prosecutor" scenario fails that test,
because if you assume the government can convict an innocent person of murder without regard for facts or evidence,
they can do that even if you refuse to testify.)

The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world.
We can be very permissive about what is considered "better", but there are some limits -- one person, for example,
gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict
evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself
up was hardly a good thing, to which he replied, "Oh... right."

The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating
a just law, or guilty of violating an unjust law. Several people have brought up to me
the example of the McCarthy hearings, when
those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

Now, most
people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers
enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth
Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every
time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power",
which would benefit suspects who are innocent,
as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would
"help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment
along those lines would have to show how it disproportionately benefits people who are innocent, or who have
violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to
at least make the argument.)

The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination.
I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing.
But of course the right not to be beaten by the police is separate from the right to remain silent.

The easiest way to see this is to consider cases where
the Fifth Amendment right to silence does not apply.
For example, if the government grants
you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government
can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain
silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.)
This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist
separately from the right against self-incrimination. Obviously, even if the government grants you immunity so
that you have to answer questions or go to jail, they still can't torture you for information.

Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of
detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there
are limits (albeit fuzzy ones) on how long
the police can detain you if they don't arrest you. (And then once you're arrested, limits on
how long they can hold
you without charging you.) As Flex Your Rights (with multiple
lawyers on their board) says,
"If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances."
That's an important curb on police power,
and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of
holding you without arresting you.

So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same
questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

If the argument has major implications for the competency of the courts generally, then address those implications.
This is not really a "pass/fail" criterion, because implications can be open-ended.

I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting
a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony
might then be used to convict him.

Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap).
It also obviously passes criterion #2 - innocent suspects remaining free
is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and
contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict
themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that
they would convict you because you contradicted yourself while being questioned about a murder, then that is the
real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain
silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used
to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence,
unreliable eyewitness testimony, the
Prosecutor's fallacy, compromised physical evidence,
untrustworthy witnesses, and a host of other potential sources of error.

So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal
justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above.
You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion
in the comments.

Since I might not
be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing
obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively
in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they
apply, but try not to be a dick. Your arsenal:

FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might
have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts
spouting off trashing the whole article and thinking that they have negated its conclusion,
then unless they actually specify a scenario, call them out with
a FAIL0.
"If you ever bothered to read your American history, you would understand that
the Fifth Amendment was adopted as an important bulwark agai--" FAIL0.
"Bennett never went to law school so he clearly isn't qual--" FAIL0.
"This article has so many errors that I scarcely know where to--" FAIL0.
You need to pose a scenario or you haven't answered the question.

Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't
take more than a few sentences to summarize a scenario.

FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not.
(I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture
whether you have the Fifth Amendment right to silence or not.)

Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway."
Well, even in a world with the Fifth Amendment,
clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission
and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if
the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's
not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about
whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time
to come up with an alibi.")

FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately
favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences
can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter
of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught
in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit
whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse
than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination.
An easy test is that if you still have certain rights even when your right against self-incrimination does not apply
because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and
the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

"This article has so many false premises that I scarcely know where to begin. I would have cited at least one example
to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came
all over the keyboard."

"Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And
Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason
we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way,
and I'm going to tell you what it is:
It's because that's not the way we do things."

"I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article,
because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me
a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least,
I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and
many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of
the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed
above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by
the police is logically distinct from the right to refuse to answer a question about whether
you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about
whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

Look at the cases where (often not-so-smart) defendants have been locked in an interrogation room for hours, being questioned over and over again - and often, intentionally or not, being fed information about the crime - until they're ready to admit, to paraphrase Nice Guy Eddie, that they started the Chicago Fire? I can think of a couple of death row cases like that right off the top of my head.

That is a Miranda right. It does not protect you in a court of law where you can be held in contempt if you refuse to answer a question. That is *if* you didn't have a right not to testify against yourself.

Observe the policeman saying when he interrogates someone, he is having a good time- getting paid overtime rates to stay in the room with you. And he also says how your own innocent statements can be used to convict you.

And this isn't even torture. It's just pressure for hours on end.It takes effort to talk and think. Taking the 5th is the least effort and most likely to prevent you from breaking.

That... and watching "Don't talk to the police" before you are arrested.

This is sometime in the future, in a country strikingly similar to the USA.

You are a young woman.

You are pregnant, due to a rape - maybe your scumbag boyfriend did it, maybe a stranger, maybe even a relative - does not matter.

You decide to terminate the pregnancy.

Since your state does not allow abortion (or puts so many ridiculous rules it's almost impossible to get one), you contact - through a secure email address - a clinic in another state and request an appointment, how much it is going to cost, what's the procedure, etc. and get answers from a doctor. All that information is stored on your laptop, either with full disk encryption (best solution), or in an encrypted file (not-so-good).

Finally, you manage to borrow/beg/steal enough money to go to the clinic, where a doctor performs the abortion. You go home and try very hard to forget about the whole thing.

One day, due to some mistake on your part -- let's say you talked to the wrong person -- state police knocks on your door, arrests you for terminating the pregnancy, seizes your laptop and discovers the incriminating evidence is encrypted.

Since they can charge you with terminating the pregnancy and/or not respecting the state rules on abortion and/or not communicating properly your intention to terminate the pregnancy, but ONLY if they have some solid evidence, they put pressure on you to give them your secret key.

What do you do? Plead the 5th. And then it becomes a case of "he said/she said"... And you get off scot-free, since there is no incriminating evidence, except for some testimony.

So, yeah, given the conservative and regressive nature of the abortion policies in many states, this may, unfortunately, become a possible scenario in the near future.

Now, change a few words in the above story - make abortion ''sexual experimentation that your local laws frown upon'' for instance - and you have another very plausible scenarion EVEN TODAY.

What you do with your own body should be nobodies business but your own.

Scenario 1: They find nothing and you go on your way. This is the BEST scenario from a police searching your car and you have lost time.

Scenario 2: They find nothing, but during the search they dropped your stuff on the ground and broke something. They aren't liable for that. Now you have a broken widget, lost time.

Scenario 3: They find a knife or other item you put there months ago while moving and you told them you had no weapons when they walked up. You now have lied to the police.

Scenario 4: You say to the police officer "I am sorry officer, I do not consent to searches". The police officer has no other reason to search you and sends you on your way.

When you're being questioned by the police, anything you say can be taken the wrong way and turn out bad for yourself. Saying things to the police at BEST leaves you right where you started. You're not getting cookies after the interrogation...

That wouldn't matter. Without the 5th as discussed the police could just show up at your door and demand answers to whatever questions they felt like asking. Not a search, as legally defined. But after you answer them, and give them what ever they were (or maybe were not) looking for, they get a search warrant.
In terms the submitter can understand: the cops show up at your door asking about a murder. You didn't commit it, and you alibi is that you were at the bar till 4 am, had 18 drinks and then drove home. You committed the crime of driving drunk, but not the murder.
Or, instead of being at the bar, you were somehow in the bed of the cop's spouse. Try to answer the question asked without the 5th and without jail or a beating by the armed thug at the door.

The US was founded not all that long after the Inquisition ended. Let's not forget how profoundly important it is not to encourage governments to take the easy path of torture.

And the British equivalent, the Star Chamber, in which coerced (read tortured) confessions were admitted.

To the OP: it's not so much about the benefit to society of someone "taking the 5th" as the government abuses prevented by it outweigh the benefits of not having the rule. Many of the constitutional rights, e.g. freedom of speech, we have weren't designed (at least not entirely) for the direct benefit of society but to limit government abuses of society. With freedom of speech, it's not really protecting , for example, the KKK's speech is seen as a benefit but that the dangers of allowing the government to choose who's speech is worthy are greater.

So, I pretty much reject to premise of examining specific cases to find a benefit where the only variable is the exercise of a right or not. Often the direct benefit from a specific case is on the side of not having the right. The benefit of the right only becomes clear by examining the historical pattern of abuses which arise from not having the right.

Wow... you have a warped sense of self-incrimination. I have a secret in my head and you're asking me to tell you. If I do, I spend years in jail. If I don't tell you, I go free. The 5th amendments stops you from torturing the secret out of me. It really is that simple. They can't ask me for the combination to my safe, either, but they can bust the door off. The only reason the feds are trying to pretend this isn't a 5th amendment violation is they don't currently have a powerful enough blow torch to get through your electronic safe's door. There is simply no difference in asking for my hard-drive password and asking for all of my secret off shore account information. If you allow one, you have to allow the other.

The Fifth Amendment's primary purpose is to protect against the enactment and prosecution of “Thought Crimes”. The Fifth Amendment makes it impossible to enforce Thought Crimes, while making it marginally (only marginally) more difficult to enforce regular crimes. Yes, the Amendment could say, instead "No man shall be convicted of a crime of thought, alone", but that is open to endless interpetation (See recent butchering of the fairly clear 4th Amendment). The Fifth Amendment effectively makes it impossible to enforce Thought Crimes with no room for interpretation.

I strongly suggest you read the section of the Congressional Research Service Annotated Constitution about the right not to self incriminate: http://www.law.cornell.edu/anncon/html/amdt5afrag6_user.html#amdt5a_hd24. In fact, I suggest you go there first whenever you have a question about the Constitution.

Your hypothetical: Watch the film "A Man for All Seasons", which powerfully illustrates the protections offered by the right not to incriminate oneself. It provides the exact hypothetical (actually, the real life historical) example you are looking for.

In the common law, and carried over to its various statutory codifications, a crime consists of a Mens Rea (criminal thought/intent), and an Actus Reus (criminal act). To be clear: this is statutory not constitutional; it can be changed at any time by the legislature, and in modern times it has been modified, sometimes substantially.

Normally, you create a case against a defendant by showing the actus reus and sufficient evidence that the jury can infer a mens rea.

However, this becomes much more difficult with a thought crime. There has been no criminal act. The person has not spoken his thoughts. How do you convict him of his criminal thoughts? You can only do so by getting him to incriminate himself.

But if a man cannot be forced to testify against himself, he can never be convicted of a thought crime.

Thought crimes are very bad. The Fifth Amendment is the first line of defense against the prosecution of thought crimes.

Thus the Fifth Amendment is a very good thing.

The reason people bring up the McCarthy trials in the context of the Fifth Amendment (whether they realize it or not) isn't because of government overreach, per se, but because it is the closest we have come to prosecution for thought crime in the US in the modern era. And, not surprisingly, the Fifth Amendment stymied the McCarthy trials to a much greater extent than normal criminal trials.